December 9, 1999; University of Minnesota
12/9/1999 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On October 4, 1999, IPA received a letter dated September 29, 1999, from Rebecca Hamblin, on behalf of her client, the University Education Association (UEA), the exclusive representative for faculty employed at the University of Minnesota - Duluth (UMD). In her letter, Ms. Hamblin asked that the Commissioner issue an opinion regarding her client's access to certain data maintained by UMD. IPA, on behalf of the Commissioner, wrote to Tracy Smith, Associate General Counsel for the University of Minnesota, in response to Ms. Hamblin's request. The purposes of this letter, dated October 5, 1999, were to inform her of Ms. Hamblin's request and to ask her to provide information or support for the UMD's position. On November 1, 1999, IPA received a response, dated same, from Mary Ann Bernard, Associate General Counsel for the University of Minnesota. A summary of the facts is as follows. In a memo dated April 14, 1999, UEA staff, on behalf of X, one of its members, requested access to certain data. UEA made this request under authority of Section 105.100 of the 1997 - 2000 Agreement between the Regents of the University of Minnesota and the [UEA] in anticipation of filing a claim of discrimination. In a memo dated April 26, 1999, UMD staff responded that Dean Anderson would soon be responding to the request. In a memo dated April 27, 1999, Dean Anderson notified UEA staff that she had requested that the Office of Equal Opportunity initiate an investigation. She added, Since the appropriate university investigation into this matter is already underway, it is our position that this process should be completed before addressing your request for information. In a letter dated May 7, 1999, Ms. Hamblin wrote to Dean Anderson. She asked Dean Anderson to treat the April 27, 1999, UEA request as a data practices request, pursuant to Chapter 13. Ms. Hamblin wrote, [X and his/her authorized UEA representative] are entitled to all public data requested, as well as data classified as private' in which [X] is the subject of the data. She further stated: To the extent that UMD contends that the data sought is either (1) private or confidential data in which [X] is not the subject of the data, or (2) confidential data in which [X] is the subject of the data, please specify the data requested and the specific statutory basis for not providing this information requested. Dean Anderson responded in a letter undated but received by Ms. Hamblin on May 17, 1999. Dean Anderson wrote that UMD has designated Judith Karon, Director of UMD Department of Human Resources, as the officer responsible for requests for information under [Chapter 13]. Dean Anderson then stated that she was transferring Ms. Hamblin's request to Ms. Karon. In a memo to Ms. Karon dated May 31, 1999, UEA staff summarized the sequence of events following the original April 14, 1999, request. In a memo to Ms. Hamblin dated June 16, 1999, UEA staff advised that they had gained access to some, but not all, of the requested data. Ms. Hamblin then requested this opinion. Issue:In her request for an opinion, Ms. Hamblin asked the Commissioner to address the following issue:
Discussion:On April 14, 1999, UEA made a request for information pursuant to its agreement with the Board of Regents. On May 7, 1999, Ms. Hamblin clarified that UEA's request was a request for data pursuant to Chapter 13. Sometime around May 17, 1999, UMD forwarded the request to its responsible authority, Ms. Karon. On June 9, 1999, UEA staff inspected some of the requested data. The Commissioner has decided to focus his discussion in this opinion on the data that UEA had not gained access to at the time of Ms. Hamblin's request. Further, it is the Commissioner's opinion that UEA's request did not become a Chapter 13 request until May 7, 1999. At the outset, it is important to point out that the Commissioner's authority under section 13.072 (the advisory opinion authority) extends only to issues involving government data. Government data are defined at section 13.02, subdivision 7, as all data collected created, received, maintained, or disseminated by a government entity regardless of physical form, storage media, or conditions of use. Upon a thorough review of UEA's request, it appears that some of the questions are not requests for government data, i.e., they are not requests to inspect or copy information that exists in a recorded form. In addition, it appears that as part of its request, UEA was asking UMD to take existing public data and format it in a particular manner. As the Commissioner has stated in previous advisory opinions, Chapter 13 does not require government entities to create data, but rather to provide access (inspection or copies) to data currently in existence. In situations where an entity has been asked to create new data, the request is not technically a data practices request, and the provisions of Chapter 13 do not apply. Previously, the Commissioner has advised that, in such instances, the entity and the requesting party work together to determine an appropriate charge. Further, if an individual's request is such that a government entity will need to create new data to respond, the government entity needs to clarify that with the requestor before moving forward. There is, however, one question that UEA asked that appears to be a request for government data, assuming UMD maintains such data. It is as follows: [UEA] requests copies of Dr. Hershey's and Dr. Hicks' records at the 4 1/4 year mark AND at the time the department evaluation of their files led to a RECOMMENDATION FOR TENURE (NOT at the time they achieved promotion) in: 1) Total peer-reviewed publications in reputable journals, 2) Total peer-reviewed publications, in reputable publications, in reputable journals, for which the work was partially or in whole done at UMD. 3) The number of EXTERNAL (Not from the University of Minnesota) grants held by each as a Principal Investigator. If there is/are Co-Principal Investigator(s), their names. 4) The magnitude of dollars awarded for each grant listed in 3) along with the amount allotted to Hershey or Hicks if there are Co-Principal Investigators. 5) Indirect Costs attached to each of the grants listed in 3). 6) The dates of initial hire, tenure, and promotion to Associate Professor for Hershey and Hicks. In her response, Ms. Bernard wrote that the requested data are private personnel data about the two individuals. Personnel data are classified at section 13.43. Subdivision 2 of section 13.43 sets forth the various types of personnel data that are public. Subdivision 4 of section 13.43 states that other personnel data are private (not accessible to the public). Of the data requested about Professors Hershey and Hicks, it appears that most of the data, with the exception of clause (6), are not public. However, given that UMD never provided a response to this particular question and that section 13.03 and Minnesota Rules, part 1205.0300, require government entities to respond in an appropriate and prompt manner, and within a reasonable time, respectively, UMD did not respond appropriately. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Hamblin is as follows:
Signed:
David F. Fisher
Dated: December 9, 1999 |
Copy costs
Existence of data
Requests for data
Response to data requests
New data or different format not required
Data request vs. question/inquiry
